State v. Pigeon, A12-1492
| Decision Date | 22 July 2013 |
| Docket Number | A12-1492 |
| Parties | State of Minnesota, Respondent, v. Billy Ray Pigeon, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed
Cass County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Christopher J. Strandlie, Cass County Attorney, Barbara J. Harrington, Assistant County Attorney, Walker, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Kirk, Judge.
UNPUBLISHED OPINION
On appeal from his conviction of stalking, appellant argues that the district court erred by denying his motion to withdraw his guilty plea. We affirm.
On January 10, 2012, respondent State of Minnesota charged appellant Billy Ray Pigeon with stalking—third or subsequent violation in 10 years, stalking—pattern of stalking conduct, terroristic threats, domestic abuse, and violation of a no contact order. The complaint alleged that, on January 7, appellant spoke to his ex-girlfriend, M.R.H., on the phone in violation of a Domestic Abuse No Contact Order (DANCO) and an order for protection (OFP). The complaint alleged that, during their conversation, appellant asked M.R.H. if he could claim their children on his taxes, and she replied that he could not. In response, appellant threatened to dismember M.R.H. and "scatter pieces of her body next to where their parents are buried." The complaint alleged that M.R.H. "believes [appellant] wants to kill her and that he is capable of doing so." M.R.H. "was visibly distraught and crying" when she reported the incident to a police officer and she told the officer that she was afraid of appellant.
The complaint further alleged that appellant has convictions for five offenses where M.R.H. individually or M.R.H. and her children were the victims. These convictions include: (1) an August 2011 conviction for violation of an OFP that was granted on behalf of M.R.H. and her children with two or more violations within 10 years; (2) a July 2011 conviction of domestic assault for assaulting M.R.H.'s daughter,D.H.; (3) a January 2009 conviction of domestic abuse—violation of an OFP that was granted on behalf of M.R.H.; (4) an April 2003 conviction of fifth-degree domestic assault for assaulting M.R.H.; and (5) a July 2001 conviction of fifth-degree domestic assault for assaulting M.R.H. The complaint alleged that on August 11, 2010, M.R.H. obtained an OFP against appellant on behalf of herself and her children. The OFP remained in effect until October 10, 2011. In addition, appellant was served with a DANCO on July 28, 2011, and ordered not to have any contact with M.R.H. or her daughter, D.H. The DANCO is in effect until July 18, 2016.
On February 23, 2012, the parties reported to the district court that they had reached a plea agreement. Appellant pleaded guilty to the charge of stalking—third or subsequent violation within 10 years. Appellant's counsel questioned appellant regarding the factual basis for his plea, and appellant admitted that he spoke with M.R.H. on the phone on January 7, and that he knew he was not supposed to talk to her. Appellant also admitted that M.R.H. became upset during the conversation. Appellant's counsel then asked appellant, "Did you manifest a threat to [M.R.H.] at that time?" Appellant replied, "No, I didn't." At that point in the colloquy, the district court questioned the sufficiency of appellant's testimony. Appellant's counsel further questioned appellant:
Based on appellant's testimony, the district court did not accept appellant's plea and continued the hearing. The district court stated,
On February 27, the district court held another hearing, and appellant pleaded guilty to the same charge. Appellant admitted the following facts:
Appellant also testified that he had three prior convictions for violating an OFP and one conviction for domestic assault. At appellant's counsel's request, the district court received a copy of the complaint into evidence.
Appellant subsequently moved to withdraw his guilty plea, arguing that his counsel misinformed him about the identity of the judge who would be sentencing him. In an attached affidavit, appellant's counsel stated that he advised appellant to accept the plea agreement based on his knowledge of the sentencing practices of the judge who would be accepting the plea. He stated that this was significant because the plea agreement included an agreement that appellant could argue for a downward dispositional departure at the time of sentencing. Appellant's counsel asserted that he later found out that a different judge would be sentencing appellant and, if he had known that information earlier, he would have advised appellant differently. Following a hearing, the district court denied appellant's motion. The district court determined that it would not be fair and just to allow appellant to withdraw his plea, and that appellant retains the benefit of the plea agreement because the other counts of the complaint were dismissed in exchange for his plea. The district court also noted that appellant does not have a right to be sentenced by a judge of his choosing. This appeal follows.
Appellant argues that the district court erred by denying his motion to withdraw his guilty plea because his plea was not supported by a sufficient factual basis. Appellant did not raise this specific argument before the district court; instead, he moved the district court to withdraw his guilty plea because the judge who sentenced him was not the samejudge who accepted his plea. In this appeal, appellant has abandoned the argument for plea withdrawal that he raised before the district court.
This court generally does not consider issues which were not raised before the district court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). "At the court's discretion, it may deviate from this rule when the interests of justice require consideration of such issues and doing so would not unfairly surprise a party to the appeal." Id. But a defendant may challenge the acceptance of a guilty plea on a direct appeal, even if the issue was not raised before the district court, when the grounds for the challenge are contained within the record. See State v. Newcombe, 412 N.W.2d 427, 430 (Minn. App. 1987) (), review denied (Minn. Nov. 13, 1987). Because appellant's argument on appeal is based on the transcript of his plea hearing and not on evidence outside of the record, we consider appellant's argument here.
A district court "must allow a defendant to withdraw a guilty plea upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice." Minn. R. Crim. P. 15.05, subd. 1. A manifest injustice occurs if a guilty plea is not valid. State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). A valid guilty plea is one that is "accurate, voluntary, and intelligent." Id. The validity of a guilty plea is a question of law that this court reviews de novo. Id. The defendant has the burden of demonstrating that his plea was invalid. Id.
Appellant only challenges the accuracy of his plea. "A proper factual basis must be established for a guilty plea to be accurate." State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). A factual basis is typically established by the defendant explaining what happened in his or her own words. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). The district court is responsible for ensuring that an adequate factual basis has been established and, therefore, the district court should personally interrogate the defendant unless the district court is satisfied that an adequate factual basis was established. Ecker, 524 N.W.2d at 716. "The factual-basis requirement is satisfied if the record contains a showing that there is credible...
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